Today we’re talking about Trademark Tales of Terror: specifically, how to stop a competitor from committing a trademark chainsaw massacre on your brand identity.
If a patent protects what your invention does (like the Ouija board’s mechanisms I talked about last week), a trademark protects who is selling it. It’s your name, your logo, your slogan, a signature scent or sound, signature packaging, and more, and it’s how your customers instantly recognize and trust you. Without it, your brand is vulnerable to copycats and imposters, the ghouls of the business world.
The Horror of Consumer Confusion
The entire point of trademark law is to prevent consumer confusion. If a consumer sees your logo or name on a product, they need to be certain that it comes from you. If a competitor uses something too similar, they are deceiving the consumer and stealing your hard-earned reputation.
A fantastic, real-life horror example involves a trademark battle over a film title in the Evil Dead franchise.
Back in 2011, Sam Raimi’s company, Renaissance Pictures, was gearing up to remake the classic film. At the same time, another company, Award Pictures, announced they were making an unauthorized sequel called Evil Dead 4: Consequences. Renaissance Pictures filed a lawsuit asserting trademark infringement against Award Pictures.
Why? Because the name Evil Dead isn’t just a film title anymore; it’s a brand. It represents decades of history, a specific cult following, and millions in merchandise, video games, and licensing. Award Pictures was essentially trying to trick fans and investors into thinking their film was an official entry in the long-running franchise, like a demon-possessed friend trying to break through the door in the floor while promising to be good.
The court agreed with Raimi, granting an injunction that barred the competitor from using the Evil Dead mark. This is a critical lesson for every independent filmmaker, musician, spooky brand owner, or everyday small business: your film title, business name, logo, and slogan, and possibly other brand identifiers, must be protected by a registered trademark, or someone else might take a chainsaw to your brand’s integrity because you don’t have the sharpest legal teeth to fight them.
Four Ways Your Brand Gets Haunted
To help you protect your brand, here are four ways trademarks get attacked, and how to defend against them:
1. Literal Infringement (The Doppelgänger)
This is the most obvious horror: a competitor uses the exact same name or logo on a similar product or service. This is a clear-cut trademark law violation and the easiest to shut down with a cease-and-desist letter or lawsuit. Well, maybe not easy. It SHOULD be easy, but sometimes you have to spend money on lawyers and going to court because the infringer is delusional and has money to burn.
This is a subtle, slow-burn horror where your distinctive, famous mark is weakened by unauthorized use. This applies if your brand name is very well known, even if the competitor sells a different product or service. For example, if a company were to start selling a cheap line of garden tools called “Leatherface’s Lawn Helpers,” this could potentially dilute the distinctive nature of the famous horror character’s name by associating it with a generic, low-quality product. This is what the Evil Dead case was about. The use of the famous name was intentionally confusing and diluted the brand name.
2. Likelihood of Confusion (The Close Call)
This is the most ironically horrifying fate for a trademark: it becomes too successful. Genericide occurs when a brand name becomes the common, generic name for the product itself. When this happens, the trademark owner loses their exclusive rights!
Real-Life Example: The term Aspirin was originally a trademark owned by Bayer. Because they didn’t successfully police its use, and because the public started using “aspirin” as the common name for the drug (acetylsalicylic acid), a court ruled in 1921 that the word was generic in the United States. Today, any company can sell “aspirin.” Other victims of this “genericide” include Escalator and Thermos.
The Lesson: If you invent a new product, you must use your brand name as an adjective, not a noun or a verb. Don’t make a “Google,” make a “Google® search.” Don’t grab a “Thermos,” grab a “Thermos® brand vacuum flask.” Guard your mark, or success will kill it!
3. Brand Dilution (The Slow Rot)
This is a subtle, slow-burn horror where your distinctive, famous mark is weakened by unauthorized use. This applies if your brand name is very well known, even if the competitor sells a different product or service. For example, if a company were to start selling a cheap line of garden tools called “Leatherface’s Lawn Helpers,” this could potentially dilute the distinctive nature of the famous horror character’s name by associating it with a generic, low-quality product. This is what the Evil Dead case was about. The use of the famous name was intentionally confusing and diluted the brand name.
4. The Curse of Genericide (The Mark That Died of Success)
This is the most ironically horrifying fate for a trademark: it becomes too successful. Genericide occurs when a brand name becomes the common, generic name for the product itself. When this happens, the trademark owner loses their exclusive rights!
Real-Life Example: The term Aspirin was originally a trademark owned by Bayer. Because they didn’t successfully police its use, and because the public started using “aspirin” as the common name for the drug (acetylsalicylic acid), a court ruled in 1921 that the word was generic in the United States. Today, any company can sell “aspirin.” Other victims of this “genericide” include Escalator and Thermos.
The Lesson: If you invent a new product, you must use your brand name as an adjective, not a noun or a verb. Don’t make a “Google,” make a “Google® search.” Don’t grab a “Thermos,” grab a “Thermos® brand vacuum flask.” Guard your mark, or success will kill it!
Trademarks Are Nearly Eternal
Remember the Ouija board patent posts from last week? The patent for the board expired, but the trademark registration for the name OUIJA is still actively enforced and perpetually renewable as long as the owner keeps using it, pays the maintenance fees, and submits examples of continuous use with the goods covered.
That’s the secret: The basic product (a talking board) is available for everyone to make. But the specific brand OUIJA, its logo, and its packaging—the things that tell you who made it—remain protected. (N.b. I was using em dashes decades before AI and I’m not going to stop it.)
Don’t let your brand name be hacked up and stolen. Conduct a thorough trademark clearance search, register your trademarks, be on the lookout for trouble, and be prepared to defend them. That’s the only way to ensure your brand lives forever!
Don’t let your creative work or business become a horror story. Intellectual property is one of the most terrifyingly useful tools you have. If you’re a creator or other entrepreneur ready to build a frighteningly powerful brand and business, you need to know how to use it. You don’t have to face the darkness alone, though.
I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I’m an attorney in Champaign-Urbana, Illinois, but I serve intellectual property clients nationwide.
If you’d like to consult with me, you can book a consultation online at kingpatentlaw.com or by calling my office at 312-596-2222 or 217-714-8558.
Please check out the other frighteningly good posts and pages on this website for more information on intellectual property and business law issues. I’m also on most major podcast platforms as “Know Your Rights: Your Intellectual Property and Business Law Playbook” and on most social media as @kingpatentlaw.
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